Guide to the Constitutional
Amendment on the
Defense of Marriage Act
September 18, 2004 Ballot
NOTE: Several lawsuits contesting the validity of the proposed constitutional amendment on marriage
have been filed. State district courts in Orleans and East Baton Rouge parishes have issued contradictory rulings as to whether the proposal will appear on the September 18 ballot. Both decisions have
been appealed. No final decision was rendered at the time of publication.
INTRODUCTION
Marriage has been the subject of intense scrutiny and
debate in the nation’s legislatures and courts for well over
a decade. How marriage and other domestic arrangements will be defined or recognized in state and federal
law has become one of the most contentious issues in the
United States. In November 2003, the Massachusetts
Supreme Court decision recognized a right to same-sex
marriage in that state. This decision, combined with the
fuel of the presidential and congressional elections in
November 2004, ignited a fiery response this spring.
Actions taken by Congress, a majority of state legislatures
and citizens groups include proposed constitutional
amendments, statutory legislation and non-binding resolutions defining marriage as the union of one man and
one woman. Lawsuits seeking to have same-sex marriages
or civil unions recognized in every state continue to fuel
the fire. The final decision on who may marry touches
many aspects of law as well as government and privatesector employee benefit programs.
In this context, the Louisiana Legislature passed the
Defense of Marriage Act (DOMA), one of five proposed
constitutional amendments to be decided upon by voters
this fall. DOMA stands alone on the September 18 ballot
to separate it from the politics surrounding the
November election for federal offices. The proposed
amendment closely follows current state law in many
respects, defining marriage as between a man and a
woman and prohibiting the recognition of same-sex marriage. However, the proposed amendment may go further
by calling into question the validity of certain contracts
between unmarried opposite-sex and same-sex partners.
You Decide
A vote for would constitutionally define marriage as the union of one man and one woman
and prohibit the recognition of same-sex marriages or civil unions of unmarried opposite-sex
and same-sex couples created under any states’
laws.
A vote against would continue to define marriage statutorily as the union between one man
and one woman and prohibit the recognition of
same-sex marriages created under other states’
laws. State law does not currently address civil
unions or domestic partnerships between unmarried opposite-sex and same-sex couples.
Public Affairs Research Council of Louisiana, Inc.
August 2004
Public Affairs Research Council of Louisiana, Inc.
Current Situation
State law currently limits marriage
to the union of one man and one
woman. Marriage between members
of the same sex is prohibited.
Louisiana law first referenced marriage as a relationship between a man
and a woman in 1975. Until that time,
it had not appeared necessary to
explicitly define marriage. In 1987,
the Legislature amended the Civil
Code to prohibit same-sex marriages
in the state and in 1999 to refuse
recognition of same-sex marriages
created under the laws of other states.
Although no suit has been filed in
Louisiana, some state and federal
courts have addressed how marriage
will be defined.
Throughout the 1970s and ‘80s,
the judiciary rejected arguments that
same-sex marriage should be recognized. A dramatic shift began in the
1990s, with two state courts finding
that same-sex couples should have
some or all marital rights. In 2003, the
Massachusetts Supreme Court was
the first court to expand the definition of marriage to include same-sex
couples in the Goodridge v. Department
of Public Health decision. Unlike earlier courts that all found that marriage
was limited to opposite-sex couples
based on history, tradition and function, the court found no adequate
Time Line of Key Laws and Cases
1971 The Minnesota Supreme Court was the first state to hear and reject
arguments that the U.S. Constitution was violated by denying a marriage license to a same-sex couple.
1993 The Hawaii Supreme Court found the denial of marital rights and benefits to same-sex couples could be discriminatory; the state amended
its constitution to prohibit same-sex marriage.
1996 The federal Defense of Marriage Act (DOMA) prohibited the federal
government from recognizing same-sex marriage under federal laws
and regulations and allowed the states to do the same. Currently, 39
states have enacted similar DOMAs. (Three other states enacted similar legislation prior to 1996.)
1999 The Vermont Supreme Court found that marital rights and benefits
may not be denied to same-sex couples. Courts in other states have
differed in recognizing those unions.
2003 The Massachusetts Supreme Court expanded the definition of mar-
riage to include same-sex couples (Goodridge v. Department of Public Health);
the legislature began the process of amending its constitution to
define marriage as the union of one man and one woman.
2004 The first lawsuit seeking nationwide recognition of same-sex couples
married in Massachusetts was filed in a Florida federal court.
Same-sex couples have filed suit in Indiana seeking marriage licenses or recognition of their Vermont civil union licenses. Legal challenges are also pending in Oregon, New York, Washington state,
California and New Jersey.
Page 2
August 2004
reason under its constitution to deny
civil marriage to same-sex couples.
State and federal marriage laws,
including state constitutional amendments, have been enacted in response
to various judicial rulings. In 1996,
Congress passed the Defense of
Marriage Act (DOMA) limiting marriage to one man and one woman
under federal laws and regulations.
The law also provides that states may
refuse to recognize same-sex marriage. However, the courts have not
yet determined whether this provision violates the “full, faith and credit” clause of the U.S. Constitution. As
of August 2004, thirty-nine states
have similar DOMA legislation that
prohibits same-sex marriages and
refuses to recognize such marriages
granted in other states. A few of the
DOMA states go further by refusing
to recognize civil unions or civil benefits for same-sex couples. Three
other states had already defined marriage by statute as the union of a man
and a woman prior to 1996. (See
Figure 1.)
Four state constitutions currently
define marriage as the union of a
man and a woman, as of August
2004. A fifth state reserves to the legislature the right to define marriage.
Thirty-two states considered proposals this year to define marriage in
their state constitution. Voters in
twelve states, including Louisiana, will
vote on such a proposal this year.
Another five states will likely vote on
this issue within the next two years.
Fifteen state legislatures considered
but did not pass constitutional
amendments for a statewide vote.
(Most of the states have DOMA
statutes.) Citizens in six of these
states responded by putting proposals
on the ballot through a citizen-initiative process.
Public Affairs Research Council of Louisiana, Inc.
Proposed Change
The amendment would add a provision to the constitution that would:
z Define marriage as the union
of one man and one woman.
z Require state officials and
courts to recognize only marriages of
one man and one woman.
z Prohibit the state from recognizing any legal status that is identical or substantially similar to that of
marriage for unmarried individuals.
z Prohibit state public officials
and courts from recognizing a marriage, which is not the union of one
man and one woman, contracted in
any other jurisdiction.
Comment
A multitude of issues hinge on
how marriage is defined and how
domestic arrangements are treated
August 2004
under the law. The definition of marriage impacts family law, healthcare
law, succession, torts, taxation, labor
law, real estate, bankruptcy, immigration, criminal law, and government
and private-sector employee benefit
programs. Some of the key issues
debated in the Louisiana Legislature
include the effect of the amendment
on domestic partnership benefits,
economic development, the adequacy
of current law against the backdrop
of litigation outside the state, children, religious beliefs, constitutional
rights and the possibility of more radical changes to marriage.
A major area of controversy is
the proposed amendment’s potential
impact on private contracts, including
domestic agreements between samesex couples and unmarried oppositesex couples or domestic partner benefits offered by private companies in
contracts with their employees. Some
rights and benefits may be granted
through contractual agreements, such
as the right to make medical decisions
through a power of attorney or a will
stating who will inherit property.
Other rights are derived through law,
such as the right to sue for wrongful
death, and may not be extended
through contractual agreement. (See
Figure 2.)
State government employees currently are ineligible for domestic partner benefits. The New Orleans City
Council established the state’s only
domestic-partner registry in 1993,
and 230 same-sex and opposite-sex
couples are currently registered. The
city extended healthcare benefits to
same-sex partners and their children
by executive order in 1997. Tulane
University, the largest private employer in New Orleans, also offers domestic partnership benefits to all of its
employees.
FIGURE 1
State Defense of Marriage Acts (DOMAs)
RI
DE
DC
DOMA States
(Laws defining marriage as union
between one man/one woman)
“Super DOMA” States
(DOMA language incorporated
into the state Constitution)
States that pre-date DOMA
(States with statutory language defining marriage as
between a man and a woman enacted before 1996)
SOURCE:National
NationalConference
ConferenceofofState
StateLegislatures
Legislatures
SOURCE:
Page 3
Updated:August
August2004
2004
Updated:
Public Affairs Research Council of Louisiana, Inc.
Legal analysts are split on the
potential impact of the amendment
on private contracts. The controversy
focuses on the interpretation of the
phrase “legal incidents” of marriage
and what may constitute a “legal status identical or substantially similar to
that of marriage.” Some legal scholars believe the amendment will not
disturb private contracts but makes
clear that same-sex couples and
unmarried opposite-sex couples are
not entitled to marital rights under
the constitution or any state law. For
example, these couples could not
pursue a wrongful death claim for a
deceased partner. Other legal experts
think private contracts closely paralleling marital rights may be nullified,
such as alimony and health-care benefits. Others think the amendment
would invalidate all agreements
between same-sex and unmarried
August 2004
opposite-sex partners, even those that
are not marital in nature, such as
medical directives.
There is also debate over whether
marriage should be defined by the
states or federal government. The
Federal Marriage Amendment (FMA)
to the federal constitution, proposed
in Congress this year, would have
defined marriage as the union
between one man and one woman
and rejected any marital benefits to
unmarried couples or groups.
However, the FMA did not come to a
vote this summer. While efforts to
promote a federal marriage amendment are likely to continue, the federal judiciary may first determine the
issue. A suit recently filed in a Florida
federal court is the first to argue that
the federal government and other
states must recognize a same-sex
marriage that occurred in a state
where same-sex marriage is recognized by virtue of the “full, faith and
credit” clause of
the U.S.
Constitution.
In an effort to forestall any judicial action, the U.S. House of
Representatives voted to limit the
jurisdiction of the federal courts in
hearing same-sex marriage cases by
passing the Marriage Protection Act
in July 2004. However, the Senate has
taken no action. The bill would prevent federal courts from ordering
states to recognize same-sex marriages that are permitted by other
states. Opponents of the bill argue
that it violates the constitution’s separation of powers among the legislative, executive and judicial branches.
Because this question has never been
tested, it is unknown if the U.S.
Supreme Court would agree that
Congress may limit what cases it may
hear.
FIGURE 2
Domestic Partnerships and Civil Unions
RI
DE
DC
Provide Domestic Partner
benefits in some form
Civil Unions or full benefits
under another name
SOURCE:
National
Conference
of State
Legislatures
SOURCE:
National
Conference
of State
Legislatures
Page 4
Updated:
February
2004
Updated:
February
2004
Public Affairs Research Council of Louisiana, Inc.
August 2004
PROPONENTS’ ARGUMENTS
Statute or Constitutional Amendment
Economic Development
Supporters argue that Louisiana should strengthen its definition of marriage to prevent the state’s supreme court from
finding the current definition of marriage unconstitutional.
The climate is especially ripe for state courts to take such
action, following the U.S. Supreme Court’s 2003 decision in
Lawrence v. Texas. Although the Lawrence opinion did not
address same-sex marriage explicitly, the decision signals the
Supreme Court’s willingness to identify private intimate sexual
conduct as a fundamental liberty interest under the U.S.
Constitution. By finding sodomy laws unconstitutional, it
removed one of the explicit public policy arguments against
recognizing same-sex unions.
A constitutional amendment sends the strongest message
that the state wishes marriage to be limited to one man and one
woman. As a state constitutional provision, it is of equal dignity with other provisions (such as the equal protection provision) that have been used to invalidate marriage statutes in
other states. Supporters also argue it would be imprudent to
wait for a lawsuit to be filed, which would likely result in the
calling of a special session of the Legislature and subsequent
election at great taxpayer expense. Amending the constitution
after a suit is filed is usually complicated by questions over the
validity of retroactive enforcement.
Marital Rights/ Benefits
and Domestic Partnerships
Proponents maintain that the amendment only limits
access to rights and benefits granted automatically under the
law and does not affect private agreements and contracts with
private employers. For example, an unmarried opposite-sex
couple would not be able to assert a spousal status or its equivalent for the purpose of claiming a right to alimony or filing a
wrongful death suit for a deceased partner, as they are rights
determined by statute or the constitution. Proponents believe
rights and obligations contracted privately would not be
impacted by the amendment. For example, same-sex couples
would still be able to leave property to their partner through a
will.
Proponents argue that the amendment will have little or no
impact on state and local coffers. The state’s image as a destination location for uninhibited fun is a nearly permanent fixture. They do not believe the amendment will impact tourism,
noting the longevity of gay and lesbian events despite the fact
that anti-sodomy laws were only recently overturned in 2003.
To the contrary, economic development efforts have been
harmed by those outside the state that perceive any type of
behavior (e.g., sexual license or corruption) is tolerated. Factors
with a more direct impact on the economy, such as public education and the tax structure, are more problematic issues to
address.
Children
Supporters of the amendment argue marriage between
opposite-sex individuals provides the best environment for the
nurturing and rearing of children. Opposite sex marriage is
uniquely designed to assure that any child conceived by a heterosexual couple will be in a more stable environment where
they are guaranteed both a mother and a father. Same-sex marriage institutionalizes motherless and fatherless families.
Religion
Supporters argue that because homosexuality runs contrary to the moral viewpoint of a large number of religious
believers, same-sex couples should not be granted marital status. Religious faith has historically played a significant role in
the formation of civil laws and continues to be a source in
understanding the role that the government serves in maintaining a strong society.
Slippery Slope
Supporters of the amendment argue that if marriage is redefined to include same-sex couples, then other changes are
likely to follow. At the point that marriage involves more than
two people, chaos will follow from those desiring various types
of group marriage, such as polygamy (marriage between a person of one sex and more than one person of the opposite sex)
or polyamory (marriage between multiple parties of both
sexes). Deviation from the traditional definition of marriage
would erode the basic unit of society and have a lasting, damaging effect on society.
Page 5
Public Affairs Research Council of Louisiana, Inc.
August 2004
OPPONENTS’ ARGUMENTS
Statute or Constitutional Amendment
Children
Opponents argue the amendment is unnecessary
because state law already clearly bans same-sex marriage
and requires opposite-sex couples to marry to enjoy certain marital rights and benefits. They view the constitutional amendment as discriminatory and punitive.
Further, opponents argue that there is no need for the
amendment, since no lawsuit has been filed to challenge
the existing state law. They also argue that if the federal
courts do hear a case asking for same-sex marriages to be
recognized in every state, it will ultimately be decided by
federal courts under the U.S. Constitution.
Opponents of the amendment argue that children
raised by unmarried opposite-sex couples and same-sex
couples could be disadvantaged compared with those
born of marriage. Existing rights and benefits available to
their parents such as health-care and medical leave could
be vulnerable to a legal challenge. They also argue that
children are frequently raised outside of married opposite-sex parent homes with 50% of marriages ending in
divorce and 45% of children in the state born to unwed
mothers.
Marital Rights/Benefits
and Domestic Partnerships
Religion
Opponents argue that religious views are diverse and
evolving. The understanding and meaning of many religious texts change with new scholarship. Opponents
argue that no one expects religious believers to recognize
same-sex marriages or civil unions, although some
churches do currently sanction same-sex unions. Others
argue that religious beliefs are not an appropriate part of
formulating public policy because of the division between
church and state.
Opponents argue that the amendment would prohibit civil unions and could prohibit certain contracts
between all unmarried couples as contrary to state public
policy. For example, an alimony agreement could be
found by the courts to mirror marriage and be nullified.
They argue that language in the proposal may be sufficiently vague to allow a court to invalidate private contractual agreements between unmarried opposite-sex or
same-sex couples, leaving them vulnerable to great uncertainty concerning a broad spectrum of issues including
medical insurance, disability protection, hospital visitation Slippery Slope
and property rights.
Opponents view the slippery slope argument as a
scare
tactic that unfairly lumps separate issues together.
Economic Development
They note that marriage is a constantly changing instituOpponents argue that companies will be deterred tion within certain limits. For example, divorce was once
from considering Louisiana, because domestic partner- difficult to obtain and is now relatively easy under noship benefits may be jeopardized by the amendment. fault divorce laws beginning in the 1960s. Miscegenation
They also argue that young workers are more selective laws once prohibited marriages between different races
about the desired traits in a community in which they live. and were found unconstitutional by the U.S. Supreme
They argue that workers in knowledge-based fields, such Court in 1967. The growing acceptance of homosexualias information technology, healthcare, the arts and sci- ty calls for marriage to include same-sex couples.
ence, prefer communities that embrace a diversity of
opinions and lifestyles.
Page 6
Public Affairs Research Council of Louisiana, Inc.
Conclusion
Louisiana would be the fifth state to
define marriage in its constitution as the
union of one man and one woman should the
amendment pass in September. Up to 11
other states may amend their state constitutions by the end of the year. The legal definition of marriage and treatment of other
domestic relationships will be the subject of
continuing debate, legislation and litigation in
this state and others. Congress and the federal courts may also play a critical role in resolving issues from a growing patchwork of state
and federal marriage laws.
August 2004
Voting on Louisiana Proposed
Constitutional Amendments (1921-2003)
Legal Citation
Act 926 (Representative Scalise) of the
2004 Regular Session adding Article XII,
Section 15.
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